Allahabad High Court
Jokhan Yadav & Another vs State Of U.P. on 6 December, 2018
Bench: Kaushal Jayendra Thaker, Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 42 Case :- CRIMINAL APPEAL No. - 7952 of 2008 Appellant :- Jokhan Yadav & Another Respondent :- State Of U.P. Counsel for Appellant :- Sri Kamal Krishna Senior Advocate assisted by Sri Akash Mani Tripathi Counsel for Respondent :- Govt. Advocate, Sri Om Prakash Mishra Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Suresh Kumar Gupta,J.
(Per. Hon'ble Suresh Kumar Gupta,J.)
1. Heard Sri Kamal Krishna, Senior Advocate assisted by Sri Akash Mani Tripathi and Sri, Om Prakash Mishra, learnd A.G.A. for the State.
2. By way of this appeal, the accused-appellants have felt aggrieved by conviction rendered by judgment and order dated 14.11.2008 passed by Additional Sessions Judge, Court No. 3, Jaunpur convicting the appellants under Section 304-B/ 498-A of Indian Panel Code (hereinafter referred as I.P.C.) And Section 4 of D.P. Act and sentenced them to undergo R.I. for life under Section 304-B I.P.C. and to undergo R.I. for a period of 2 years and to pay a fine of Rs.5,000/- each under Section 498-A I.P.C. and further to undergo R.I. for a period of 1 year and to pay a fine of Rs.5,000/- each under Section 4 of Dowry Prohibition Act , in Sessions Trial No. 199 of 2006, State Vs. Ganges Kumar amongst many other grounds.
3. The prosecution story, in brief, is that Ramjeet Yadav had lodged a report of the incident at P.S. Nevadiya, Village- Mahewa, District-l Jaunpur alleging therein that the deceased Sita Devi aged about 24 years was married with Mangesh Kumar Yadav S/o Jokhan Yadav, Village- Mainpur, Post- Madiawan , District- Jaunpur in the year 1999. The accused were dissatisfied with the dowry given by Ramjeet Yadav (father of the deceased) to the best of his capacity but the accused Mangesh was demanding money every year as dowry. The complainant Ramjeet Yadav gave Rs. 10,000/- to the husband of the deceased. The father, mother and brother of the husband of the deceased once again demanded Rs. 50,000/- for which the husband of the deceased wrote a letter to father of the deceased and demanded money. On 27.04.2006, the informant- Ramjeet Yadav received information that his daughter had got burnt.
4. The prosecution so as to bring home the charges have examined the following witnesses who are Nine in number:
1Ramjeet Yadav PW1 2 Durga Prasad Yadav PW2 3 Shiv Sewak Yadav PW3 4 Ram Lakhan Tiwari PW4 5 Chedi Lal PW5 6 Hare Ram Yadav PW6 7 Dr. Vinod Kumar PW7 8 Vijendra Giri PW8 9 Sureshwar PW9
5. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
1F.I.R.
Ex.Ka-11
2.
Written Report Ex.Ka.1
3. Recovery memo of Envelop Card Ex.Ka.3
4. Recovery memo of Marriage Card Ex.Ka.4 5 Recovery memo of Ash & Cloth Ex.Ka.14 6 P.M. Report Ex.Ka.10 7 Site Plan With Index Ex.Ka.13
6. On the witnesses being examined and the prosecution having concluded its evidence. The accused were put questions under Section 313 Cr.P.C. but except pleading that they did not know anything and/or they have been falsely implicated, no material was placed. The accused examined 7 witnesses as defence witness, who are as under:
1Akhilesh Chand Dubey D.W.1 2 Sher Bahadur D.W.2 3 Surendra Prasad Yadav D.W.3 4 Satendra Kumar Debey D.W.4 5 Rai Sahab Singh D.W.5 6 Lal Bahadu Saroj D.W.6 7 Prabhat Kumar Singh D.W.7
7. Sri Kamal Krishna, Senior Advocate appearing for the appellant's submits that there is no averment and no proof that mother-in-law or the father-in-law had demanded any dowry, it is not even proved that the husband had ever demanded any dowry. He has raised the concern about proximity of death with so called dowry demand according to him the letter written is of the year 2000, much prior to the incident which occurred and for which the accused are held guilty. Learned Advocate has submitted that the husband, father-in-law and mother-in-law were not present and they were in the neighboring field and the learned Judge has not considered the deposition of any of the defence witnesses more particularly the evidence of doctor who had treated the husband who had received burn injuries while trying to save the deceased due to this incident. He has further submitted that it is a case of suicide not of dowry death and therefore, the accused are supposed to be given the benefit of doubt as ingredients of 304-B are not made out and has submitted that the evidence of father of the deceased P.W.1 and the evidence of P.W. 3 contradict each other. The F.I.R. does not spell out exact date of marriage. Learned Advocate has laid great emphasis on this fact because, according to the accused the period which has to be counted for 304-B does not fall within this period.
8. Learned Advocate has further submitted that husband was younger in age to the deceased and that was also a factor which may be considered, which will go in favour of the accused. Learned Advocate has further submitted that what was the date of demand is nowhere proved, it is submitted that there is a missing link between the date of demand and the death and therefore, the accused would be entitled to the benefit as propounded by the Apex Court in Hem Chand Vs. State of Harayana (1994) 6 SCC 727. According to learned Advocate for the accused there was no harassment or cruelty. In the alternative, learned Advocate has submitted that if this Court is not satisfied to record acquittal of the accused in view of the judgment (Sunil Dutta Sharma Vs. State (Government of NCT of Delhi) (2014) 4 SCC 375, G.V. Siddaramesh Vs. State of Karnataka (2010) 3 SCC 152, Criminal Appeal No. 125 of 2011 (Mahesh Vs. State of U.P.) decided on 05.05.2017, Criminal Appeal No. 1317 of 2008 (Santosh Vs. State of U.P.) decided on 26.08.2016 and has submitted that these catena of the decisions has held that in dowry death where there is conviction on the basis of presumption under 113-B of Evidence Act, Life Imprisonment should be given in rare cases and therefore, has prayed for lesser sentence. According to learned counsel for the accused, the accused are in jail since the date of the judgment. The father-in-law and mother-in-law are aged and therefore, also leniency may be shown by this Court.
9. The learned A.G.A. has submitted that just because there is incarceration of more than ten years, a lenient view may not be taken. We are impressed by this submission and make it clear that the view which we are taking is not based on incarceration but based on the judgment cited by Sri Kamal Krishna, Senior Advocate and the shaky evidence before the trial Court. However, he holds that it has been proved that it was an unnatural death and we are unimpressed by the submission made by Sri Kamal Krishna, Senior Advocate that the marriage dates are doubtful. It is submitted by Sri Kamal Krishna that dates were not proved when the F.I.R. was lodged. These are all minor discrepancies, these are minor contradictions which cannot go to the roots of the matters.
10. There are four factors which will have to be considered by us and before we consider the essential ingredients of Section 304-(B) I.P.C., the Parliament in its wisdom has inserted Section 113-B in the Evidence Act for such premature homicidal death.
11. The troubling features against the accused, (i) that the death has occurred within seven years of the marriage, (ii) the deceased had no issue from the wedlock (iii) just immediately before her death even if it is considered to be suicidal death, her father was complained has rightly submitted by learned A.G.A. that the father rebuked her and conveyed that she may 'live or die in her matrimonial home' that should be at her matrimonial home. The parents refused to take her back to the parental house and she complained of ill treatment is evident from this evidence. This is one major factor which goes to show that she was treated with cruelty for which she had complained persistently to her parents and thereafter, death took place.
12. It is proved from the facts that demand of dowry has been made. In Maya Devi Vs. State of Harayana decided on 7th December, 2015 the essential ingredient to be satisfied for conviction and of for communication under Section 304-B reiterated are as follows:
(i) the death of woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) such death must have occurred within seven years of her marriage;
(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband;
(iv) such cruelty or harassment must be for, or in connection with, demand of dowry;"
13. And therefore, the submission of the learned counsel for the appellant that it was suicidal death will pale into insignificance and even if it is considered to be suicidal death. The death of the deceased was unnatural and within 7 years of marriage:-
(Section 304-B and 498-A- Dowry death -conditions precedent for establishing dowry death--Reiterated "Cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry or in connection with therewith is the common ingredient to constitute offences under Section 498-A and Section 304-B. The expression "dowry" is ordained to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The expression "cruelty", contains in its expanse, apart from the conduct of the tormentor, the consequences precipitated thereby qua the lady subjected thereto." (para 26 and 27) Section 113-B of the Act enjoins a statutory presumption as to dowry death."
14. We are even supported by the judgment of the Apex Court in Baijana Vs State M.P. 2013 (1) SCC 101, in this case the alleged death was homicidal or not will have to also ascertained, the Post-Mortom Report reads as follows:
'body of the deceased has been burnt 90%, except for a bit of the backside of the leg, the whole body was burnt, the body had blackened. The tongue had stuck out. Hair was scorched. Carbon particles were found in the internal membrane of the trachea, 'chest box' of the chest and ribs were burnt. Membrane of the lung were congested. Carbon particles were found in the trachea and respiratory system. Both the right and left lungs were congested. Heart was filled with blood. The internal mouth cavity was burnt. There were 16 teeth on each jaw- upper and lower. Food pipe was congested and had carbon particles. Stomach had undigested food. Intestine was filled with gas. Large intestine had gas and faeces. Liver was congested. Bladder was empty. Both kidneys and the spleen were congested. Uterus was empty." and therefore, as per the provisions of Section 299 I.P.C. it can be said to be homicidal death and therefore death being unnatural is crude to the hilt and the finding of the fact to that effect of the trial Court even on the touchstone of the judgement stated by Sri Kamal Krishna, Senior Advocate cannot persuade us to hold it was not an unnatural death further. Further unnatural death was in the matrimonial home within span of seven years immediately before the death she was treated with cruelty is also crude by cogent, oral evidence laid by the prosecution.
15. Having held that 304-B I.P.C. is attracted, as they are in jail for a period of more than five years. We do not delve into the commission or otherwise of 498-A I.P.C. as it is deem to be proved and they have already undergone that sentence. Further this takes us to the alternative submission of Sri Kamal Krishna, Senior Advocate in Soyebbhai Yusufbhai Bharania & 3 Others Vs. State of Gujarat 2013 SCC 8755:
" SENTENCE:
15. The disparity manifested in awarding appropriate/inappropriate sentence in trials has come to fore and the time has come when the sentences will have to be based on the following touch-stones.
16. The Indian Penal Code, like other major penal statues, prescribes punishment for various offences created under it. It provides for four kinds of punishments;
(i) death; (ii) imprisonment for life; (iii) imprisonment for various terms which may be either simple or rigorous, and(iv) fine. A further peep into the legislative paradigm of the code discloses that certain offences are made punishable with a minimum sentence with a cap qua the maximum, with or without fines, For some offences, it prescribes an upper limits of sentence, leaving the minimum, to the discretion of the court, which may even be of one day.
17. The Code, thus, gives much leeway to, and confers wide discretion on, the judiciary to pick up an opt punishment, if the offence concerned is made punishable by different forms of alternate punishment and a choice is given to it to opt either of them, in isolation or combination, and/or to quantify ''punishment' within the range of ''minimum' and ''maximum' punishment, if any, prescribed for the offence. In the absence of any sentencing policy or standardized guiding principles in India, a court is virtually left to determine sentence which, in its opinion, meets the ends of justice. However, it is the duty of a court to use its judicial discretion to award a sentence that is ''proper' in the backdrop of circumstances of the case at hand, and ''matches' with the guilt of offender.
18. The Supreme Court, through its judicial pronouncements, debating upon the issue as to when the extreme penalty of death has to be imposed/sustained or be replaced by a lesser sentence of imprisonment for life, has been voicing its concern for ''proper' (in the factual matrix and circumstances of case at hand) and ''proportionate' (in the context of gravity and nature of the offence committed) sentence. It has justified punishment with these dual attributes on certain philosophical and pragmatic propositions and principles. Some of these propositions and principles again re-surfaced in a couple of the cases handed down by it during 2009.
19. In Gurukukh Singh v. State of Haryana, reported in 2009(11) Scale 688, the Supreme Court not only emphasized that it is the duty and obligation of every court to award proper sentence but also enumerated various factors that the court is required to consider while determining the sentence. They are (i) motive or previous enmity; (ii) whether the incident had taken place on the spur of the moment; (iii) the intention/knowledge of the accused while inflicting the blow or injury; (iv) the gravity, dimension and nature of injury; (v) the age and general health condition of the accused; (vi) whether the injury was caused without premeditation in a sudden fight; (vii)the nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (viii) the criminal background and adverse history of the accused; (ix) number of other criminal cases pending against the accused; (x) incident occurred within the family members or close relations, and (xi) the conduct and behavior of the accused after the incident, whether the accused had taken the injured/ the deceased to the hospital immediately to ensure that (s)he gets proper medical treatment ? In the same breath, the apex court has made it clear that these factors are only illustrative and not exhaustive. These are some of the relevant factors which are required to be kept in view by a sentencing court. Each case, obviously, has to be seen from its special perspective. The court must ensure that the accused receives appropriate sentence and that it must be proportionate to the gravity of the offence committed by the convict. Proportion between ''crime' and ''punishment' is one of the accepted goals of criminal justice system. The principle of proportion between crime and punishment essentially requires a court to prepare a balance-sheet of mitigating and aggravating circumstances and quantify the ''punishment' based thereon. The principle of proportionality is evolved to remove (or at least to minimize) arbitrariness in the sentencing process.
20. In Jameel v. State of Uttar Pradesh, reported in 2009(13) SCALE 578, the apex court further stressed that the imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice, the court stated, demands that the courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime and conscience of the society. It also reminded the courts of the need that they, while modulating sentence, need to be stern or to be tempered with mercy whenever factual matrix of a case at hand warrants. The nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and other attending circumstances may be necessary pointers for the court in tailoring ''proper' sentence.
21. The Supreme Court in the case of State of Punjab v. Manjit Singh, reported in (2010)1 SCC (Cri.) 1283, favoured to avoid imposition of capital punishment because the accused were driven by infatuation and deprivation of their senses. It was a case where the accused killed the sons of the woman with whom they had illicit relations. The court seems to console itself because "Though the act of the accused is a gruesome one, but it was a result of human mind going astray. No doubt, they acted in a ghastly manner..." Indeed, while reasoning, the court drew the discussions from an earlier decision in Ronny v. State of Maharashtra, reported in (1998) 3 SCC 625, but did not mention it at all. In the second case, viz. Maniappan vs. State of Tamil Nadu, reported in (2010) 3 SCC (Cri.) 1402, a bus carrying students was burnt, killing the girl students. The Supreme Court upheld the capital punishment noting that the members of the society, the police and other officials remained inactive while the crime was being committed. The court apparently put this case as the rarest of the rare case. Indeed, one could go on adding reasons for making it so. It appears that Manjit Singh also could have equally been made one of the rarest of rare cases.
22. So far as the question of sentence is concerned, the same is a matter of discretion of the learned trial Judge. It is well settled law that when the discretion has been granted to the learned trial Judge, if the same is not arbitrarily, capriciously or perversely but has been properly exercised by accepted judicial norms, the appellate court ought not to interfere to the detriment of the accused person unless there are very strong reasons which are not disclosed on the face of the judgment for the lesser punishment."
and the jugement cited by Sri Kamal Krishna, Senior Advocate us that though the death was unnatural whether it was suicidal or homicidal death, we have not gone into it and as per the presumption of Section 113-B it is proved that the death was unnatural, but the deposition of the doctor appearing for the defence can be said to be acceptable and the husband had tried to save the wife and this act of his will go to so that there was less culpalbilty in bringing him and to the life of the deceased. We therefore, compute his sentence from life to already undergo by the three people.
16. It is nobodies case that marriage period was more than seven years. The amount of Rs. 50,000/- was demanded much before and we are convinced by the submission of the learned A.G.A. that victim was so much harassed that even her father told her "तुम जलो या मरो " which means that she had complained to her parents about the agony which she was facing which means that she was cruelly dealt with just before her death.
17. It is admitted position of fact and proved that it was an unnatural death whether it was suicide or murder, we do not distinguish the same and we hold that death was unnatural and is covered by under Section 304(B) I.P.C..
18. The marriage date is proved to be 30.4.1999 and therefore we are satisfied that the death has occurred within seven years of marriage.
19. It takes us to the sentencing submission made by Sri Kamal Krishna relied on judgments. We hold that the husband tried to save the wife is corroborated by the evidence of defence doctor and therefore a lenient view can be taken in view of the judgmets of the Apex Court. The defence witnesses have testified that the mother-in-law and the father-in-law (Jokhan Yadav) were not present at the place of offence but as we have held that it was an unnatural death seven years incarceration with all remissions would suffice for mother-in-law and father-in-law appeal no. 7952 of 2008. This takes us to the sentencing to the husband (Mangesh Yadav) ten years with all remissions under 304(B)- sentence under 498A maintainable for all the accused.
20. Fine maintained.
21. The Jail Authority will calculate the period of his incarceration and decide the same in accordance with jail manual.
22. We are thankful to Senior Advocate Sri Kamal Krishna to get this very old matter dispose of on the first hearing on the date fixed today as well as learned A.G.A. who is assisted us very well by preparing the matter.
23. The appeal is partly allowed.
24. Records and proceedings be sent back to the trial Court forthwith.
Order Date :- 6.12.2018 Krishna